PFAS Litigation
Per- and polyfluoroalkyl substances (PFAS) are a group of manmade chemicals used in thousands of industrial and consumer products, from clothing and food packaging to personal care products, cookware, and fire extinguishing foam, since the 1940s. Also known as “forever chemicals” because they break down very slowly and can accumulate in the environment and our bodies, PFAS have been linked to numerous health effects, including cancer, altered immune and thyroid function, hormonal imbalances, kidney disease, and reproductive and developmental harms.
It is estimated that nearly half of the country’s drinking water contains PFAS. For decades, the corporations that manufacture PFAS contaminated drinking water supplies, forcing water districts and treatment plants to pay for remediation. But dozens of chemical companies are now facing thousands of lawsuits filed by water providers nationwide seeking to recoup the costs of cleaning and monitoring PFAS-polluted sites.
Milberg is representing people, families, and communities negatively affected by PFAS-polluted water. Corporate polluters need to be held responsible for contaminating water supplies, and we are helping to lead the legal fight in what could end up being one of the largest and most significant public health litigations since the Big Tobacco lawsuits of the 1990s.
What are PFAS?
PFAS have gotten a lot of attention lately for their potentially adverse health effects, but they’ve been around for nearly a century.
The first PFAS—polytetrafluoroethylene (PTFE)—was accidentally discovered in 1938 by a DuPont scientist working with refrigerant gases. The discovery led to Teflon, which was registered in 1945 and sold commercially beginning in 1946.
These toxic chemicals are so pervasive and so long lasting in the environment that they’ve been found in food, soil, and water, even in the most remote corners of our planet.
3M began manufacturing two types of PFAS, PFOA and PFOS, in the 1950s. The U.S. Navy partnered with 3M in the 1960s to develop foam for extinguishing large petroleum fires on its ships. The Navy received a patent for aqueous film forming foam, or AFFF, in 1966. It was soon a requirement that all Navy facilities have AFFF on hand to fight fires. Airports, military bases, oil and gas facilities, chemical plants, storage-tank facilities, and municipal fire departments also began using PFAS-based firefighting foams.
Today there are more than 3,000 chemicals classified as PFAS. They’re used in industrial products like AFFF, as well as consumer products such as clothing, carpets, food packaging, and household products. These “forever chemicals” exist in more than 12,000 forms and avoiding them is nearly impossible.
A recent USGS study found PFAS in at least 45% of the country’s water. PFAS contaminates oceans, lakes, and streams, fall from the sky in raindrops, and have been detected in the blood of more than 98% of Americans. And because they don’t readily break down, they can persist in the environment for hundreds or thousands of years.
What are the Health Risks of PFAS?
Among the thousands of types of PFAS, two classes—PFOA and PFOS—have been studied extensively and linked to harmful health effects in animals and humans.
According to the EPA, scientific studies have shown that PFAS exposure can lead to:
- Cancer risk
- Developmental effects
- Hormone interference
- Increased cholesterol levels
- Obesity risk
- Reduced immune system response
- Reproductive effects
EPA admits that additional health effects of PFAS are “difficult to determine” due to factors such as the many types and uses of PFAS, different exposure routes, and varying exposure levels. Certain industrial workers, children, and pregnant women may have greater exposure to PFAS. Children may also be more sensitive to PFAS.
But given what is known about how PFAS can harm human health, the EPA is taking a cautious approach. The agency has proposed a national PFAS drinking water standard that would regulate PFOA, PFOS, and other PFAS. EPA’s proposal, which could be finalized by the end of 2023, would cap PFOA and PFOS at 4 parts per trillion and require public water systems to monitor for PFOA, PFOS, PFNA, PFHxS, PFBS, and GenX Chemicals.
“These toxic chemicals are so pervasive and so long lasting in the environment that they’ve been found in food, soil, and water, even in the most remote corners of our planet,” said EPA Administrator Michael Regan. “We anticipate that when fully implemented, this rule will prevent thousands of deaths and reduce tens of thousands of serious PFAS-related illnesses.”
Why Are PFAS Lawsuits Being Filed?
The more we learn about the prevalence of PFAS and their health effects, the more industry groups, communities, and individuals are doing to avoid PFAS exposure. This is a difficult task, however, given how widespread the chemicals are and how long they persist in the environment. Mitigating PFAS health concerns is also made more challenging by decades of manufacturers not being honest about these chemicals.
3M, one of the main defendants in PFAS lawsuits, admitted in 2000 that PFOS were accumulating in the environment and showing up in humans and animals at concerning levels. But there is evidence that 3M knew as early as the 1950s, based on internal studies, that PFAS were toxic to humans and the environment, could migrate through groundwater, and bioaccumulate. By the 1960s, 3M was aware that PFAS do not naturally degrade in the environment and were contaminating well water. Throughout the 1970s 3M continued to research and confirm the dangers of PFAS but only shared its concerns with the EPA in the late 1990s, leading to a phaseout of PFOS in the early 2000s.
PFAS litigation could eclipse the Big Tobacco settlements of the 1990s.
As recently as 2018, 3M publicly denied that PFOS or PFOA are dangerous to humans. To this day, 3M continues to cast doubt on PFAS dangers, even as it has reached a tentative settlement to pay more than $10 billion to local water systems.
Water providers are suing 3M and fellow PFAS makers Chemours, Dupont, and Corteva for the costs of cleaning and filtering PFAS out of their wells and aquifers. The providers claim that the manufacturers failed to warn about the environmental hazards and toxic effects of PFAS.
3M reached a settlement in June 2023 to pay up to $10.3 billion to public water suppliers for cost related to PFAS testing and remediation. In a second settlement, DuPont, Chemours, and Corteva agreed to pay $1.185 billion to settle water provider PFAS lawsuits. The claims were part of AFFF multidistrict litigation in South Carolina Federal Court. As of October 2023, more than 6,000 cases are pending in the AFFF MDL.
How is Milberg Fighting Back Against PFAS Polluters?
With communities across the country facing PFAS cleanup and monitoring costs, the billions paid so far by chemical companies could just be the tip of the iceberg. Thousands of claims remain unsettled, and new claims and new defendants continue to be added to the docket. When PFAS lawsuits are all said and done, they could eclipse the $200+ billion Big Tobacco settlements.
Milberg’s environmental attorneys have been pursuing PFAS consumer product litigation for years. We are also engaged in AFFF PFAS lawsuits on behalf of municipalities, public and private water districts, state attorneys general, and individual personal injury plaintiffs.
In our proud tradition of effectuating change through litigation, Milberg stands with the communities that have been forced to bear the costs of PFAS pollution that should rightly fall to manufacturers. These chemicals may be “forever,” but the time of PFAS manufacturers avoiding accountability is over.
We are currently assessing potential claims from water/wastewater utilities that have had to pay for PFAS treatment and remediation. To speak with our Environmental Litigation team about a PFAS lawsuit, please contact us.
